(Slip Opinion)

OCTOBER TERM, 2006

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

SOLE, SECRETARY, FLORIDA DEPARTMENT OF EN

VIRONMENTAL PROTECTION, ET AL. v. WYNER ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 06531.

Argued April 17, 2007Decided June 4, 2007

In private actions under 42 U. S. C. 1983, federal district courts may

allow the prevailing party . . . a reasonable attorneys fee as part of
the costs. 1988(b). Plaintiff-respondent Wyner notified the Florida
Department of Environmental Protection (DEP), in mid-January
2003, of her intention to create on Valentines Day, within MacArthur
State Beach Park, an antiwar artwork consisting of nude individuals
assembled into a peace sign. Responding on February 6, DEP in
formed Wyner that her display would be lawful only if the partici
pants complied with Floridas Bathing Suit Rule, which requires
patrons of state parks to wear, at a minimum, a thong and, if female,
a bikini top. To safeguard her display, and future nude expressive
activities, against police interference, Wyner and a coplaintiff (collec
tively Wyner or plaintiff) sued Florida officials in the Federal District
Court on February 12. Invoking the First Amendments protection of
expressive conduct, Wyner requested immediate injunctive relief
against interference with the peace sign display and permanent in
junctive relief against interference with future activities similarly in
volving nudity. An attachment to the complaint set out a 1995 set
tlement with DEP permitting Wyner to stage a play with nude
performers at MacArthur Beach provided the area was screened off to
shield beachgoers who did not wish to see the play. Although discon
certed by the hurried character of the proceeding, the District Court
granted Wyner a preliminary injunction on February 13, suggesting
that a curtain or screen could satisfy the interests of both the State
and Wyner. The peace symbol display that took place the next day
was set up outside a barrier apparently put up by the State. Once
disassembled from the peace symbol formation, participants went

SOLE v. WYNER
Syllabus
into the water in the nude. Thereafter, Wyner pursued her demand
for a permanent injunction, noting that she intended to put on an
other Valentines Day production at MacArthur Beach, again involv
ing nudity. After discovery, both sides moved for summary judgment.
At a January 21, 2004 hearing, Wyners counsel acknowledged that
the peace symbol display participants had set up in front of the bar
rier. The court denied plaintiffs motion for summary judgment and
granted defendants motion for summary final judgment. The delib
erate failure of Wyner and her coparticipants to stay behind the
screen at the 2003 Valentines Day display, the court concluded,
demonstrated that the Bathing Suit Rules prohibition of nudity was
essential to protect the visiting public. While Wyner ultimately
failed to prevail on the merits, the court added, she did obtain a pre
liminary injunction, and therefore qualified as a prevailing party to
that extent. Reasoning that the preliminary injunction could not be
revisited at the second stage of the litigation because it had expired,
the court awarded plaintiff counsel fees covering the first phase of the
litigation. The Florida officials appealed, challenging both the pre
liminary injunction and the counsel fees award. The Eleventh Cir
cuit held first that defendants challenges to the preliminary injunc
tion were moot. The court then affirmed the counsel fees award,
reasoning that the preliminary order allowed Wyner to present the
peace symbol display unimpeded by adverse state action.

Held: Prevailing party status does not attend achievement of a prelimi

nary injunction that is reversed, dissolved, or otherwise undone by
the final decision in the same case. Pp. 611.
(a) The touchstone of the prevailing party inquiry this Court has
stated, is the material alteration of the legal relationship of the par
ties in a manner which Congress sought to promote in the fee stat
ute. Texas State Teachers Assn. v. Garland Independent School
Dist., 489 U. S. 782, 792793. At the preliminary injunction stage,
the court is called upon to assess the probability of the plaintiffs ul
timate success on the merits. The foundation for that assessment
will be more or less secure depending on the thoroughness of the ex
ploration undertaken by the parties and the court. In this case, the
preliminary injunction hearing was necessarily hasty and abbrevi
ated. There was no time for discovery, nor for adequate review of
documents or preparation and presentation of witnesses. The provi
sional relief granted expired before appellate review could be gained,
and the courts threshold ruling would have no preclusive effect in
the continuing litigation, as both the District Court and the Court of
Appeals considered the preliminary injunction moot once the display
took place. The provisional reliefs tentative character, in view of the
continuation of the litigation to definitively resolve the controversy,

Cite as: 551 U. S. ____ (2007)

Syllabus
would have made a fee request at the initial stage premature. Of
controlling importance, the eventual ruling on the merits for defen
dants, after both sides considered the case fit for final adjudication,
superseded the preliminary ruling. Wyners temporary success
rested on a premisethe understanding that a curtain or screen
would adequately serve Floridas interest in shielding the public from
nuditythat the District Court, with the benefit of a fuller record, ul
timately rejected. Wyner contends that the preliminary injunction
was not undermined by the subsequent merits adjudication because
the decision to grant preliminary relief was an as applied ruling
based on the officials impermissible content-based administration of
the Bathing Suit Rule. But the District Court assumed content neu
trality for purposes of its preliminary order. The final decision in
Wyners case rejected the same claim she advanced in her prelimi
nary injunction motion: that the state law banning nudity in parks
was unconstitutional as applied to expressive, nonerotic nudity. At
the end of the fray, Floridas Bathing Suit Rule remained intact.
Wyner had gained no enduring chang[e] [in] the legal relationship
between herself and the state officials she sued. See Texas State
Teachers Assn., 489 U. S., at 792. Pp. 610.
(b) Wyner is not a prevailing party, for her initial victory was
ephemeral. This Court expresses no view on whether, in the absence
of a final decision on the merits of a claim for permanent injunctive
relief, success in gaining a preliminary injunction may sometimes
warrant an award of counsel fees. It decides only that a plaintiff who
gains a preliminary injunction does not qualify for an award of coun
sel fees under 1988(b) if the merits of the case are ultimately de
cided against her. Pp. 1011.
179 Fed. Appx. 566, reversed and remanded.
GINSBURG, J., delivered the opinion for a unanimous Court.

Cite as: 551 U. S. ____ (2007)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06531
_________________

MICHAEL W. SOLE, SECRETARY, FLORIDA DEPART-

MENT OF ENVIRONMENTAL PROTECTION,

ET AL., PETITIONERS v. T. A. WYNER ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 4, 2007]

JUSTICE GINSBURG delivered the opinion of the Court.

For private actions brought under 42 U. S. C. 1983 and
other specified measures designed to secure civil rights,
Congress established an exception to the American Rule
that the prevailing litigant is ordinarily not entitled to
collect [counsel fees] from the loser. Alyeska Pipeline
Service Co. v. Wilderness Society, 421 U. S. 240, 247
(1975). That exception, codified in 42 U. S. C. 1988(b),
authorizes federal district courts, in their discretion, to
allow the prevailing party . . . a reasonable attorneys fee
as part of the costs. This case presents a sole question:
Does a plaintiff who gains a preliminary injunction after
an abbreviated hearing, but is denied a permanent injunc
tion after a dispositive adjudication on the merits, qualify
as a prevailing party within the compass of 1988(b)?
Viewing the two stages of the litigation as discrete
episodes, plaintiffs below, respondents here, maintain that
they prevailed at the preliminary injunction stage, and
therefore qualify for a fee award for their counsels efforts
to obtain that interim relief. Defendants below, petition

SOLE v. WYNER
Opinion of the Court

ers here, regard the case as a unit; they urge that a pre
liminary injunction holds no sway once fuller considera
tion yields rejection of the provisional orders legal or
factual underpinnings. We agree with the latter position
and hold that a final decision on the merits denying per
manent injunctive relief ordinarily determines who pre
vails in the action for purposes of 1988(b). A plaintiff
who achieves a transient victory at the threshold of an
action can gain no award under that fee-shifting provision
if, at the end of the litigation, her initial success is undone
and she leaves the courthouse emptyhanded.
I
In mid-January 2003, plaintiff-respondent T. A. Wyner
notified the Florida Department of Environmental Protec
tion (DEP) of her intention to create on Valentines Day,
February 14, 2003, within John D. MacArthur Beach
State Park, an antiwar artwork. The work would consist
of nude individuals assembled into a peace sign. By letter
dated February 6, DEP informed Wyner that her peace
sign display would be lawful only if the participants com
plied with the Bathing Suit Rule set out in Florida Ad
ministrative Code 62D2.014(7)(b) (2005). That rule
required patrons, in all areas of Floridas state parks, to
wear, at a minimum, a thong and, if female, a bikini top.1
To safeguard the Valentines Day display, and future
expressive activities of the same order, against police
interference, Wyner filed suit in the United States District
Court for the Southern District of Florida on February 12,
2003. She invoked the First Amendments protection of
expressive conduct, and named as defendants the Secre

1 The rule reads: In every area of a park including bathing areas no

individual shall expose the human, male or female genitals, pubic area,
the entire buttocks or female breast below the top of the nipple, with
less than a fully opaque covering. Fla. Admin. Code Ann. 62D
2.014(7)(b) (2005).

Cite as: 551 U. S. ____ (2007)

Opinion of the Court

tary of DEP and the Manager of MacArthur Beach Park.2

Her complaint requested immediate injunctive relief
against interference with the peace sign display, App. 18,
and permanent injunctive relief against interference with
future expressive activities that may include non-erotic
displays of nude human bodies, id., at 19. An exhibit
attached to the complaint set out a May 12, 1995 Stipula
tion for Settlement with DEP. Id., at 2223. That settle
ment had facilitated a February 19, 1996 play Wyner
coordinated at MacArthur Beach, a production involving
nude performers. A term of the settlement provided that
Wyner would arrange for placement of a bolt of cloth in a
semi-circle around the area where the play [would]
be performed, id., at 23, so that beachgoers who did not
wish to see the play would be shielded from the nude
performers.
The day after the complaint was filed, on February 13,
2003, the District Court heard Wyners emergency motion
for a preliminary injunction. Although disconcerted by the
hurried character of the proceeding, see id., at 37, 93, 95,
the court granted the preliminary injunction.
The
choice, the court explained, need not be either/or.
Wyner v. Struhs, 254 F. Supp. 2d 1297, 1303 (SD Fla.
2003). Pointing to the May 1995 settlement laying out
agreed-upon manner restrictions, the court determined
that [p]laintiff[s] desired expression and the interests of
the state may both be satisfied simultaneously. Ibid. In
this regard, the court had inquired of DEPs counsel at the
preliminary injunction hearing: Why wouldnt the curtain
or screen solve the problem of somebody [who] doesnt
want to see . . . nudity? Seems like that would solve [the]

2 Wyner

was joined by coplaintiff George Simon, who served as a

videographer for expressive activities Wyner previously organized at
MacArthur Beach. See App. 13. For convenience, we refer to the
coplaintiffs collectively as Wyner or plaintiff.

SOLE v. WYNER
Opinion of the Court

problem, wouldnt it? App. 86. Counsel for DEP re

sponded: Thats an option. I dont think necessarily
[defendants] would be opposed to that . . . . Ibid.; see id.,
at 74 (testimony of Chief of Operations for Florida Park
Service at the preliminary injunction hearing that the
Services counsel, on prior occasions, had advised: [I]f
they go behind the screen and they liv[e] up to the agree
ment then its okay. If they dont go behind the screen and
they dont live up to the agreement then its not okay.).
The peace symbol display took place at MacArthur
Beach the next day. A screen was put up, apparently by
the State, as the District Court anticipated. See id., at
108. See also id., at 94 (District Judges statement at the
conclusion of the preliminary injunction hearing: I want
to make it clear . . . that the [preliminary] injunction
doesnt preclude the department, if it chooses, from using
. . . some sort of barrier . . . .). But the display was set up
outside the barrier, and participants, once disassembled
from the peace symbol formation, went into the water in
the nude. See id., at 108; Deposition of T. A. Wyner in
Civ. Action No. 0380103 (SD Fla., Nov. 14, 2003), pp. 99
100.
Thereafter, Wyner pursued her demand for a permanent
injunction. Her counsel represented that on February 14,
2004, Wyner intended to put on another production at
MacArthur Beach, again involving nudity. See App. 107.
After discovery, both sides moved for summary judgment.
At the hearing on the motions, held January 21, 2004, the
District Court asked Wyners counsel about the screen put
up around the preceding years peace symbol display.
Counsel acknowledged that the participants in that dis
play ignored the barrier and set up in front of the screen.
Id., at 108.
A week later, having unsuccessfully urged the parties to
resolve the case as [they] did before in [the 1995] settle
ment, id., at 143, the court denied plaintiffs motion for

Cite as: 551 U. S. ____ (2007)

Opinion of the Court

summary judgment and granted defendants motion for

summary final judgment. The deliberate failure of Wyner
and her coparticipants to remain behind the screen at the
2003 Valentines Day display, the court concluded, demon
strated that the Bathing Suit Rules prohibition of nudity
was no greater than is essential . . . to protect the experi
ences of the visiting public. Wyner v. Struhs, Case No.
0380103CIV (SD Fla., Jan. 28, 2004) (Summary Judg
ment Order), App. to Pet. for Cert. 42a. While Wyner
ultimately failed to prevail on the merits, the court added,
she did obtain a preliminary injunction prohibiting police
interference with the Valentines Day 2003 temporary art
installation, id., at 45a, and therefore qualified as a pre
vailing party to that extent, see Wyner v. Struhs, Case No.
0380103CIV (SD Fla., Aug. 16, 2004) (Omnibus Order),
App. to Brief in Opposition 5a13a. The preliminary
injunction could not be revisited at the second stage of the
litigation, the court noted, for it had expired on its own
terms. Id., at 4a. So reasoning, the court awarded plain
tiff counsel fees covering the first phase of the litigation.
The Florida officials appealed, challenging both the
order granting a preliminary injunction and the award of
counsel fees. Wyner, however, pursued no appeal from the
final order denying a permanent injunction. The Court of
Appeals for the Eleventh Circuit held first that defen
dants challenges to the preliminary injunction were moot
because they addressed a finite event that occurred and
ended on a specific, past date. Wyner v. Struhs, 179 Fed.
Appx. 566, 567, n. 1 (2006) (per curiam). The court then
affirmed the counsel fees award, reasoning that plaintiff
had gained through the preliminary injunction the pri
mary relief [she] sought, i.e., the preliminary order al
lowed her to present the peace symbol display unimpeded
by adverse state action. Id., at 569.
Wyner would not have qualified for an award of counsel
fees, the court recognized, had the preliminary injunction

SOLE v. WYNER
Opinion of the Court

rested on a mistake of law. Id., at 568, 569570. But it

was new developments, the court said, id., at 569, not
any legal error, that accounted for her failure to achieve
actual success on the merits at the permanent injunction
stage, id., at 569, n. 7. Plaintiff and others participating
in the display, as Wyners counsel admitted, did not stay
behind the barrier at the peace symbol display, id., at 569;
further, the court noted, a fair reading of the record
show[ed] that [p]laintif[f] had no intention of remaining
behind a [barrier] during future nude expressive works,
ibid. The likelihood of success shown at the preliminary
injunction stage, the court explained, id., at 569, n. 7, had
been overtaken by the subsequent demonstrat[ion] that
the less restrictive alternative, i.e., a cloth screen or other
barrier, was not sufficient to protect the governments
interest, id., at 569. But that demonstration, the court
concluded, did not bar an award of fees, because the new
facts emerged only at the summary judgment stage. Ibid.
We granted certiorari, Struhs v. Wyner, 549 U. S. ___
(2007), and now reverse.
II
The touchstone of the prevailing party inquiry, this
Court has stated, is the material alteration of the legal
relationship of the parties in a manner which Congress
sought to promote in the fee statute. Texas State Teach
ers Assn. v. Garland Independent School Dist., 489 U. S.
782, 792793 (1989). See Hewitt v. Helms, 482 U. S. 755,
760 (1987) (plaintiff must receive at least some relief on
the merits of his claim before he can be said to prevail);
Maher v. Gagne, 448 U. S. 122, 129 (1980) (upholding fees
where plaintiffs settled and obtained a consent decree); cf.
Buckhannon Board & Care Home, Inc. v. West Virginia
Dept. of Health and Human Resources, 532 U. S. 598, 605
(2001) (precedent counsel[s] against holding that the term
prevailing party authorizes an award of attorneys fees

Cite as: 551 U. S. ____ (2007)

Opinion of the Court

without a corresponding alteration in the legal relation

ship of the parties).3 The petitioning state officials main
tain that plaintiff here does not satisfy that standard for,
as a consequence of the final summary judgment, [t]he
state law whose constitutionality [Wyner] attacked [i.e.,
the Bathing Suit Rule,] remains valid and enforceable
today. Brief for Petitioners 3. The District Court left no
doubt on that score, the state officials emphasize; ordering
final judgment for defendants, the court expressed, in the
bottom line of its opinion, its hope that plaintiff would
continue to use the park, albeit not in the nude. Sum
mary Judgment Order, App. to Pet. for Cert. 46a.
Wyner, on the other hand, urges that despite the denial
of a permanent injunction, she got precisely what she
wanted when she commenced this litigation: permission to
create the nude peace symbol without state interference.
That fleeting success, however, did not establish that she
prevailed on the gravamen of her plea for injunctive relief,
i.e., her charge that the state officials had denied her and
other participants in the peace symbol display the right
to engage in constitutionally protected expressive activi
ties. App. 18. Prevailing party status, we hold, does not

3 Buckhannon

Board & Care Home, Inc. v. West Virginia Dept. of

Health and Human Resources, 532 U. S. 598, 600 (2001), held that the
term prevailing party in the fee-shifting provisions of the Fair Hous
ing Amendments Act of 1988 and the Americans with Disabilities Act of
1990 does not includ[e] a party that has failed to secure a judgment on
the merits or a court-ordered consent decree, but has nonetheless
achieved the desired result because the lawsuit brought about a volun
tary change in the defendants conduct. The dissent in Buckhannon
would have deemed such a plaintiff prevailing, not because of any
temporary relief gained (in that case, a consent stay pending litigation),
but because the lawsuit caused the State to amend its laws, terminat
ing the controversy between the parties, and permanently giving
plaintiff the real-world outcome it sought. See id., at 622, 624625
(opinion of GINSBURG, J.). Our decision today is consistent with the
views of both the majority and the dissenters in Buckhannon.

SOLE v. WYNER
Opinion of the Court

attend achievement of a preliminary injunction that is

reversed, dissolved, or otherwise undone by the final
decision in the same case.4
At the preliminary injunction stage, the court is called
upon to assess the probability of the plaintiffs ultimate
success on the merits. See, e.g., Ashcroft v. American Civil
Liberties Union, 542 U. S. 656, 666 (2004); Doran v. Salem
Inn, Inc., 422 U. S. 922, 931 (1975). The foundation for
that assessment will be more or less secure depending on
the thoroughness of the exploration undertaken by the
parties and the court. In some cases, the proceedings
prior to a grant of temporary relief are searching; in oth
ers, little time and resources are spent on the threshold
contest.
In this case, the preliminary injunction hearing was
necessarily hasty and abbreviated. Held one day after the
complaint was filed and one day before the event, the
timing afforded the state officer defendants little opportu
nity to oppose Wyners emergency motion. Counsel for the
state defendants appeared only by telephone. App. 36.
The emergency proceeding allowed no time for discovery,
nor for adequate review of documents or preparation and
presentation of witnesses. See id., at 3839. The provi
sional relief immediately granted expired before appellate
review could be gained, and the courts threshold ruling
would have no preclusive effect in the continuing litiga
tion. Both the District Court and the Court of Appeals
considered the preliminary injunction a moot issue, not fit
for reexamination or review, once the display took place.
See Summary Judgment Order, App. to Pet. for Cert. 34a;
Omnibus Order, App. to Brief in Opposition 3a4a; 179
Fed. Appx., at 567, n. 1; cf. Lewis v. Continental Bank

4 In resolving Wyners claim for counsel fees, we express no opinion on

the dimensions of the First Amendments protection for artworks that
involve nudity.

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Opinion of the Court

Corp., 494 U. S. 472, 477479 (1990). In short, the provi

sional relief granted terminated only the parties opening
engagement. Its tentative character, in view of the con
tinuation of the litigation to definitively resolve the con
troversy, would have made a fee request at the initial
stage premature.
Of controlling importance to our decision, the eventual
ruling on the merits for defendants, after both sides con
sidered the case fit for final adjudication, superseded the
preliminary ruling. Wyners temporary success rested on
a premise the District Court ultimately rejected. That
court granted preliminary relief on the understanding that
a curtain or screen would adequately serve Floridas inter
est in shielding the public from nudity that recreational
beach users did not wish to see. See supra, at 34; 254
F. Supp. 2d, at 1303 (noting that the parties had previ
ously agreed upon a number of . . . manner restrictions
that are far less restrictive than the total ban on nudity).
At the summary judgment stage, with the benefit of a
fuller record, the District Court recognized that its initial
assessment was incorrect. Participants in the peace sym
bol display were in fact unwilling to stay behind a screen
that separated them from other park visitors. See Sum
mary Judgment Order, App. to Pet. for Cert. 42a. See also
App. 108 (acknowledgment by Wyners counsel that par
ticipants in the February 14, 2003 protest in effec[t]
ignored the screen). In light of the demonstrated inade
quacy of the screen to contain the nude display, the Dis
trict Court determined that enforcement of the Bathing
Suit Rule was necessary to preserv[e] park aesthetics
and protect the experiences of the visiting public. Sum
mary Judgment Order, App. to Pet. for Cert. 41a, 42a.
Wyner contends that the preliminary injunction was not
undermined by the subsequent adjudication on the merits
because the decision to grant preliminary relief was an as
applied ruling. In developing this argument, she asserts

10

SOLE v. WYNER
Opinion of the Court

that the officials engaged in impermissible content-based

administration of the Bathing Suit Rule. But the District
Court assumed, for the purposes of [its initial] order, the
content neutrality of the state officials conduct. See 254
F. Supp. 2d, at 1302. See also 179 Fed. Appx., at 568, and
n. 4 (reiterating that, for the sake of the preliminary
injunction order, the District Court assumed content
neutrality). That specification is controlling. See Fed.
Rule Civ. Proc. 65(d) (requiring every injunction to set
forth the reasons for its issuance and be specific in
terms). See also Schmidt v. Lessard, 414 U. S. 473, 476
(1974) (per curiam) (Rule 65(d) was designed to prevent
uncertainty and confusion on the part of those faced with
injunctive orders.).
The final decision in Wyners case rejected the same
claim she advanced in her preliminary injunction motion:
that the state law banning nudity in parks was unconsti
tutional as applied to expressive, nonerotic nudity. At the
end of the fray, Floridas Bathing Suit Rule remained
intact, and Wyner had gained no enduring chang[e] [in]
the legal relationship between herself and the state offi
cials she sued. See Texas State Teachers Assn., 489 U. S.,
at 792.
III
Wyner is not a prevailing party, we conclude, for her
initial victory was ephemeral. A plaintiff who secur[es] a
preliminary injunction, then loses on the merits as the
case plays out and judgment is entered against [her], has
[won] a battle but los[t] the war. Watson v. County of
Riverside, 300 F. 3d 1092, 1096 (CA9 2002). We are pre
sented with, and therefore decide, no broader issue in this
case.
We express no view on whether, in the absence of a final
decision on the merits of a claim for permanent injunctive
relief, success in gaining a preliminary injunction may

Cite as: 551 U. S. ____ (2007)

11

Opinion of the Court

sometimes warrant an award of counsel fees. We decide

only that a plaintiff who gains a preliminary injunction
does not qualify for an award of counsel fees under
1988(b) if the merits of the case are ultimately decided
against her.
*
*
*
For the reasons stated, the judgment of the Court of
Appeals is reversed, and the case is remanded for proceed
ings consistent with this opinion.
It is so ordered.